Recently, I ran across two examples of an alternate-reality conventional wisdom on Korematsu. This is the best known Supreme Court case justifying as constitutional the forcible internment of U.S. citizens of Japanese descent in World War II. The basic flavor of the new conventional wisdom is that the internment was justified on the basis of the knowledge available to government officials acting in good faith in the confused months following the December 1941 attack on Pearl Harbor. Later, however, using the benefits of hindsight, “liberals” condemned the Korematsu case as racist and consigned it to the category of one of the worst decisions in the history of the American judiciary. I think exploring this new conventional wisdom yields some insights on the quality of constitutional analysis post-9/11.

One example is in a book written by Judge Posner on Bush v. Gore. Posner suggests that liberals “denounce [Korematsu] from the safe distance of half a century.” He comments that the threat posed by Japan was perceived to be great, “though in hindsight we know that the perception was exaggerated.” Apparently making a comment about liberals today, Posner states: “Liberals detest Korematsu, but not because it allowed pragmatism to trump principle; rather because of suspicion of the military and a sense of shame about the history of the nation’s mistreatment of East Asians.”I was surprised to find another example of this sort of reasoning in a casebook on foreign relations law by Professors Bradley and Goldsmith. They refer to “intelligence information” about threats from Japanese civilians as if it was credible at the time. They note that Korematsu “is widely decried,” but apparently on the basis of an “ex post perspective” in “hindsight.” They ask students to reflect whether hindsight is “the proper perspective from which to determine the validity of military orders in response to perceived emergencies?”

It would be a shame if these examples were part of a conservative rewriting of constitutional history. This alternate-reality conventional wisdom has no contact with the standard historical literature on Korematsu which has been available for decades. They are bunk and an alarming sort of bunk at that. The internment was condemned by responsible lawyers in 1942 as wrong, unconstitutional, and based on flimsy evidence. All of this was known at the time, not the product of ex-post reasoning by “liberals.”

There are many sources to which I could turn, but let me use Freedom From Fear, David Kennedy’s volume in the Oxford Press History of the U.S., to make a few points. Lawyers like Attorney General Francis Biddle knew in advance that mass internment should be avoided as unconstitutional in light of the experience of WW I. There were many false reports of Japanese attacks on California in the wake of Pearl Harbor. Irresponsible military officials kept predicting sabotage efforts on the mainland; when none transpired, they claimed that their absence suggested a conspiracy. Officials in the federal government with relevant expertise, including FBI director Hoover knew there were no credible charges of a fifth-column effort. Advocates of internment made clear, however, that they regarded the state of California as a “battlefield.” Racists fanned the flames. Lawyers at the Justice Department tried to restore some rationality to the internal government debate but Biddle was overawed by the War Department. Kennedy notes that even Secretary of War Stimson had doubts, saying we “will make a tremendous hole in our constitutional system to apply [the internment].” The internment orders that followed had the effect of making U.S. citizens into nonpersons deprived of all constitutional rights, especially liberty and property without due process of law, not to mention equal protection.

As the war continued, Cabinet officials such as Biddle, Stimson and Secretary of the Interior Ickes continued to press FDR to end the internment, saying it was “a blot upon the history of this country.” The War Department tried to justify the internment as court cases were brought. Colonel Karl Bendetsen wrote a report replete with claims about Japanese espionage that the FBI and FCC knew to be false. DOJ lawyers tried to alert the Supreme Court that the claims in the Bendetsen report were false (in a footnote in a brief), but were overruled. Kennedy notes that if the War Department “had not succeeded in expunging the footnote that called DeWitt’s Final Report into question, a majority of the Court would quite possibly have found in Korematsu’s favor.”

It’s not as if everyone figured out decades after WWII that the internment had been a terrible mistake, as Posner would have it. Most responsible lawyers with access to relevant information knew the internment was unjustified at the time. Others without access to FBI files were capable of exercising their common sense judgment to figure out that the evidence available could never justify the deportation of whole families into internal exile.

There are some further obvious lessons to be drawn from Korematsu. Surprise attacks cause fear and confusion. The military and the president are quickly on guard against other attacks that might cost American lives. Fortunately, in WWII we had sensible lawyers in the DOJ who knew the proposed internment went too far. Unfortunately, they were overruled by the War Department and a president inattentive to constitutional rights. But the DOJ lawyers in WWII led by AG Biddle were on the right track and their ex-ante judgments about the true risks of sabotage were proven right by history. Too bad officials in the Bush DOJ were not more aware of this history and their proper role in our constitutional order in the aftermath of 9/11.

Richard Posner has, in the past few years, ruined a lifetime's worth of brilliant scholarship with his increasingly shrill, irrational and in some cases racist apologia for the Bush administration's War on Civil Liberties.

"You don't want another 9/11, do you?" is not a universal trump card for every emasculation of the Constitution specifically and individual rights generally.

Part of the conservative project in the past 30 or so years has been to attack scholarship and the media as terminally biased and untrustworthy.

Conservatives such as these authors instinctively reject inconvenient scholarship. Any plausible argument they can concoct is sufficient, in conservative-world, to devastate decades of scholarship.

Plus, they know that there is zero penalty in their peer group of conservative intellectuals for saying false things, as long as they serve the larger case (say, executive power, during the Bush era; or executive weakness, during the previous presidency).

There are some further obvious lessons to be drawn from Korematsu. Surprise attacks cause fear and confusion. The military and the president are quickly on guard against other attacks that might cost American lives. Fortunately, in WWII we had sensible lawyers in the DOJ who knew the proposed internment went too far. Unfortunately, they were overruled by the War Department and a president inattentive to constitutional rights. But the DOJ lawyers in WWII led by AG Biddle were on the right track and their ex-ante judgments about the true risks of sabotage were proven right by history. Too bad officials in the Bush DOJ were not more aware of this history and their proper role in our constitutional order in the aftermath of 9/11.

Care to back up this risible comparison between interning tens of thousands of innocent Americans during WWII and our post 9/11 policies with any facts?

probably the most important piece of information griffin has left out of his analysis is the public opinion factor. as a child of that time I can testify that public opinion was such that internment of those Japanese Americans probably saved most of their lives. the same applies to german Americans that were interred.Hatred of both the Japanese and Germans spred like wildfire. So much so that on halloween lifelike inages of hitler and Tojo were paraded around the town in a cage with appropriate HATE SIGNS. Dummies were used to prevent harm by anyone who might be inclined to take physical action against the images.A song about Hitler and Mussolini titled " Whistle while you work " was on the lips of everyone even the children.People who owned guns had them cleaned and ready and volunteered for the civil defense corps.Children collected Kapok for life jackets. Everyone got involved. That is what we need now more than anything. This is no longer a popularity contest as viewed by the Democrats. More than ever it ie imperative that we choose the right person for President and that person is Fred Thompson.

Even if the record showed people were not certain about the threat at the time, how can the Posner position honestly say that the view that in such uncertainty we ought to lean more towards the way in which we are less likely to choose even when it is correct is an unreasonable position? Also, how is being suspicious of military not a pragmatic position, or for that matter, how is it not a conservative position? Am I to understand that we should be suspicious of all government except for the people with the guns?

Hatred of both the Japanese and Germans spred like wildfire. [...] That is what we need now more than anything. This is no longer a popularity contest as viewed by the Democrats. More than ever it ie imperative that we choose the right person for President and that person is Fred Thompson.

Sorry, but Fred's not been particularly forthcoming. Could you elucidate as to who we're supposed to hate? Some style pointers would be appreciated as well....

I can’t speak to Judge Posner’s views, but certainly Jack Goldsmith and I were not trying to make any revisionist argument about Korematsu or the internment policy in the casebook note referred to above. Indeed, we try not to be argumentative at all in the casebook. Our goal there was merely to give students a sense of the mindset of some people at the time (e.g., in the discredited DeWitt report) and then ask questions about how we should think about that mindset. It looks like the first sentence of that note in particular is responsible for the misimpression, so we will be sure to tone it down in the next edition of the casebook, and also probably cite to some better materials. Thanks to Stephen Griffin for pointing this out.

I'm grateful to Prof. Bradley for responding to my worries about his casebook. Of course I accept his explanation. I would only suggest that to the extent we want to consider the mindset of relevant military officers like Gen. DeWitt during 1942, we also want to consider how the claims of the military should be evaluated when there is contrary evidence.

My own view is that Korematsu is useful not only for teaching that war often generates massive injustices against vulnerable groups, but also for teaching the importance of levels of scrutiny (assuming one takes them seriously). I wonder if Steve would agree with the proposition that it was "minimally rational" (i.e., not crazy) to believe that the detention policy might be useful. Jack Balkin and I probably spent at least a week to ten days discussing how to present Korematsu in our casebook. We note not only the support that such eminences as Watler Lippman gave to the roundup, but also the fact that the US had been consistently anti-Japanese at least since the Russo-Japanese War. And, of course, one of the reasons that so many of those rounded up were Japanese nationals was that they were prohibited from becoming citizens. So, frankly, my own view is they had every reason to feel less than fully loyal to a country that had systematically denigrated and humiliated them for decades, a very different history, incidentally, than Italan and, even more so, German immigrants. (Consider whether one would necessarily have expected the Sioux to join in defending the US against an attack from Indian tribes across the Canadian border (who, by stipulation, were not enemies of the Sioux) in,say, 18. It therefore doesn't strike me as "irrational" to fear that Japanese nationals would support the land of their birth against a country that had treated them so shabbily, and I'm not even sure that it's lunatic to believe that some 14th Amendment birthright citizens wouldn't be sufficiently angry at the treatment of their parents to turn against the US. Then one must take the step of arguing that it is also non-lunatic to engage in general sequestration given the exigencies of time with regard to conducting pre-detention hearings. BUT, even if one concedes, arguendo, that Roosevelt's policy might have passed a test of "minimum rationality," especially as that term is used after 1937, I believe that it fails completely under "strict scrutiny" and even under an "intermediate" level requiring an "exceedingly persuasive justification" and a "close fit" between the policy and the presumptively permissible end (i.e., protecting national security). Thus I still end up condemning Justice Black's opinion, but the reason, in large part, is that he failed to engage in any serious review on the merits.

I hope that I haven't turned into a "Korematsu revisionist" by suggesting that Roosevelt's policy, though wrong, wasn't "crazy."

I recently published a paper in the Virginia Law Review ("Democratic Failure and Emergencies: Myth or Reality?" 93 Va. L. Rev. 1785) that directly responds to some of the recent critiques of Korematsu and that takes a slightly different, political-process based view of the internment. If you'll indulge the shameless plug for my own paper, I've attached the abstract below:

The long-running debate about the ability of a democratic government to respond to emergencies has assumed new significance as scholars, judges, and government officials develop new arguments to respond to the challenges presented by the twenty-first century and the “War on Terror.”

Traditional emergency-politics theorists explain democratic government during emergency with the “democratic failure theory.” But revisionists, led by Professors Eric Posner and Adrian Vermeule, recently have challenged the “democratic failure” theory, arguing that, because emergencies affect no systemic change in the structure of voting and representation, democratic government functions with equal facility during emergencies as during normal times.

This Note, while ambivalent about a broad application of the traditionalists’ democratic failure theory, offers one counterpoint to Posner and Vermeule and their revisionist claim. Introducing primary source research and re-introducing forgotten or overlooked academic arguments, this Note presents a case study of the Japanese internment during World War II. The internment of individuals of Japanese descent was not merely the result, as revisionists argue, of a continuation of the peacetime baseline or of rational concerns for national security. National security concerns played a part in the decision, to be sure, but this Note argues that the primary impetus for internment came from an anti-Japanese West-Coast coalition’s successful exploitation of the democratic failure caused by the emergency of World War II. The coalition had long sought to exclude individuals of Japanese descent (and the Chinese before them), but before World War II, those efforts lacked mainstream political appeal. World War II changed the political playing field, and the anti-Japanese coalition on the West Coast knew it. Capitalizing on the World War II democratic failure, the coalition harnessed the political support necessary to achieve its exclusionary goal.

--The paper is also available on SSRN at http://ssrn.com/abstract=1085097

Sandy, it remains unclear to me against what position you're arguing. I'm not aware of anyone who maintains that directing some sort of investigatory policy against people of Japanese ancestry (alien or citizen) in the wake of Pearl Harbor was (as you say) "irrational." Directing such a policy against Brazilians would have been irrational. Directing it against Japanese Americans was not. So I agree with you, and I can't think of anyone who writes about Korematsu who wouldn't.

But how does this figure in the debate that Stephen opened? Stephen pointed out (and I elaborate at much greater length on my blog) that the Bradley/Goldsmith excerpt presented the government policy not merely as non-irrational, but as grounded as a matter of fact in documented military necessity and as uniformly accepted in its time. Both of these things are demonstrably quite false. That was what raised the specter of revisionism (a specter that Curt Bradley has explained was not at all their intent).

I take (and agree with) your point. To incorporate and expand a bit: The real question, I think, is not why the Japanese were treated differently from the Brazilians, but why they were treated differently from the Germans and the Italians. Of course there are a number of explanations, some legitimate (e.g., Pearl Harbor) and some not (these have been well documented by Eric and others). But when the attorney general had a plan to review 1.5 million cases (for individuals of Japanese, as well as German and Italian, descent) on an individual level, which was rejected in favor of mass internment, the internment decision becomes more difficult to justify, even in view of the then-accepted military-necessity arguments.

I have argued (see post above) that Biddle was overruled by government actors unduly influenced by West-Coast anti-Japanese groups. I think this explanation, in the end, is correct, but I think—regardless of the conclusion one reaches—the question of the treatment of individuals of Japanese ancestry versus the individuals of German and Italian descent is the relevant (and overlooked) comparison.

The question we need to ask, when assessing the internment, is “as compared to what?” Apologists must justify the internment decision over other available alternatives, and they must explain the different treatment of the different groups. This, given the legitimate and available alternatives (such as Biddle’s proposal), is where I think they run into trouble.

It should be pointed out the historical revisionists are those supporting the "findings" of the politically motivated CWRIC a "history" that has only been around since the 1980s.

Now I'll respond to a couple of the comments I've read here.

Sandy said, "And, of course, one of the reasons that so many of those rounded up were Japanese nationals was that they were prohibited from becoming citizens."

And why were they prevented from becoming citizens? Because Japan sent Japanese nationals overseas in droves, including to the United States in violation of the First and Second Gentlmen's Agreements, a treaty between Japan and the United States that Japan openly and willfully ignored. The issei were illegal aliens. The United States government then gave them permanent resident status (even though they were illegal aliens)and after Pearl Harbor their status changed to enemy aliens.

According to the U.S.Census, in 1940 there were approx 84,000 Issei in the U.S. and Hawaii, the bulk of them were under 50 years of age. By 1960 there were approx 101,000, no doubt including some war brides. According to INS publication "Persons Naturalized by Former Allegiance" only 32,168 Japanese-born became naturalized U.S.citizens between 1952-1960. That's only 32%. To suggest that issei were falling over themselves to become American citizens is a myth.

Stephen says, "I would only suggest that to the extent we want to consider the mindset of relevant military officers like Gen. DeWitt during 1942, we also want to consider how the claims of the military should be evaluated when there is contrary evidence."

As Conn clearly shows, DeWitt, up to his final recommendation to the War Department on 13 Feb. 1942, (prior to FDR's E.O.9066) was consistent in his opposition to the detention of American citizens. His final recommendation to the War Department was that "citizen evacuees would either ACCEPT INTERNMENT VOLUNTARILY OR RELOCATE THEMSELVES with such assistance as state and federal agencies might offer." (Emphasis mine)

In his final recommentation, DeWitt also called for the inclusion of ALL enemy aliens (German and Italians as well as Japanese) in any evacuation decided.

The evacuation decision was made in the War Department and instructions to DeWitt for instrumentation thereof differed markedly from DeWitt's final recommendation in a number of respects. But the fact is that from early on to his final recommendation prior to the Evacuation Decision made in Washington, DeWitt was consistent in his opposition to the detainment of American citizens of Japanese descent. As a good soldier, however, he bowed to the orders of his superiors and carried out their instructions to the best of his ability.

As for contrary evidence, what evidence are you referring to?

The Tolan Committee heard plenty of testimony from people supporting and rejecting the need for evacuation and obviously the opinions of those rejecting the need for evacuation didn't hold weight with those military and political leaders responsible for the security of the country in a time of war.

In fact much of the testimony during the CWRIC hearings by the anti-evacuation people was just a rehash of the testimony brought before the Tolan Committee decades before.

James said, "World War II changed the political playing field, and the anti-Japanese coalition on the West Coast knew it."

A large percentage of white Americans in the public and private sector opposed evacuation because the Japanese were superior at intensive truck farming and these crops would be needed for the war effort. In the private sector much opposition came from those in the agriculture business, including produce shippers, packing houses, fertilizer companies and white Americans who had leased farmland to the Japanese. To state all white Americans were running around hysterically hurling accusations of racism is just not true. Some were, but they were in no position to make the decision to evacuate.

Another agriculture related problem, especially in California is that the predominately Filipino and Mexican field workers refused to work for Japanese farmers and nobody was willing to work their crops.

James then says, "I have argued (see post above) that Biddle was overruled by government actors unduly influenced by West-Coast anti-Japanese groups."

The government unanimously supported the west coast becoming a military combat zone and in a military combat the military calls the shots. The status is different from peacetime civil society and civil liberties can be curtailed. In a nutshell that's the extent of it, so all this talk about due process and injustice against ethnic Japanese is moot. The military could have evacuated everybody if they had felt the need to.

Then James says, "Apologists must justify the internment decision over other available alternatives, and they must explain the different treatment of the different groups."

The Tolan committee looked very closely at the need to evacuate Germans and Italians from the West Coast combat zones, also.

It was learned that the vast majority of the German enemy aliens were Jewish Germans who had escaped Hitler's oppression starting in the early 1930's. The Italians were by and large illiterate farmers who had never gotten around to applying for citizenship.

After careful thought and discussion it was decided these people were not a threat to the West Coast combat zones to the extent the ethnic Japanese were a threat.

To argue there must be some kind of proportionality between Germans, Italians and Japanese because they all happen to be the enemy without acknowledging the extent of the security threat from ethnic Germans and Italians compared to ethnic Japanese in a time of war doesn't make a whole lot of sense.

California Congressman Edouard V. Izac recalled the regional coalition’s orchestration of the national internment policy: “[T]he Army was only slightly more willing than the Justice Department to evacuate the Japs. Evacuation would never have taken place if the united Pacific Coast delegations had not applied pressure—not only upon the Attorney General and the Secretary of war—but also on the President himself.”

DeWitt (in late January 1942) agreed, noting the “tremendous volume of public opinion now developing [in the West] against the Japanese . . . to get them off the land.”

2. Evidence of the coalition’s carefully orchestrated campaign designed to convince federal authorities to implement the internment program:

The Grower-Shipper Vegetable Association, in a letter to California Congressman Anderson: “[We are] convinced that if [permanent removal of Japanese from the United States] is not done or at least the action completed before the war is over, it will be impossible to get rid of them. . . . [W]e must do everything we can to stop them now as we have a golden opportunity now and may never have it again.”

Grower-Shipper managing secretary, Austin Anson, after a trip to meet with federal officials in Washington to discuss internment options: “We’re charged with wanting to get rid of the Japs for selfish reasons. We might as well be honest. We do. It’s a question of whether the white man lives on the Pacific Coast or the brown men . . . . And we don’t want them back when the war ends either.”

The California Joint Immigration Committee executive secretary: “[T]he Committee has received more active and more general support in the last month than it has received in the last thirty years of its existence, and what we want, we ought to get now.” “This is our time to get things done that we have been trying to get done for a quarter of a century.”

Western Growers Protective Association in letter to Congressman Anderson: “[N]ow is the time to do this and to do it right. If we wait until after the war is over the ‘sob sisters’ are going to hold sway again and we will never be able to get such a resolution through Congress and the various State Legislatures.”

3. State officials joined in:

Governor Smith of Wyoming threatened that, if individuals of Japanese descent were relocated from California to his State, “[t]here would be Japs hanging from every pine tree” in Wyoming.

Governor Maw of Utah: The federal government is “too concerned about the constitutional rights of Japanese-American citizens.”

4. And things didn’t improve during attempts to readmit the internees to their West Coast communities:

Colonel William P. Scobey, discussing with the Provost Marshal General’s Office the readmission of the Japanese to the West Coast: “[P]rotest will come from the West Coast. . . . [T]here’s a lot [behind the protest] and part of it is economic. . . . [The] West Coast saw a way to get rid of the Japs, they got rid of them, now they don’t want them out there, they want to take the property over. It isn’t all patriotic by any means. . . . Of course, they couch their protests under the guise of security and patriotism. . . . [T]he most violent opponent of the Government will wave the flag. And whatever the Government does, these people will wave the flag all the time.”

All of these quotations are taken from my paper (cited above). They come from Grodzins, Irons, Daniels, and directly from the National Archives.

"These Japanese retailers have been the principal outlet for the Japanese wholesalers, since over a period of years it is well-known that the Japanese invariably give business preference to others of their own race."

"In small acreages planted primarily for local markets the Japanese grower has an advantage over the white grower that has pretty well driven the white grower out of small-scale production in many parts of Los Angeles County. These farms will average around ten acres and the Japanese farmer can and does use his wife and children for practically all his labor requirements giving him a production cost substantially below that of a small white farmer."

"I have talked to many many wholesale growers of vegetables for the local market who have either gone out of business in the past ten years or greatly reduced their operations due to Japanese competition of a type with which they could not meet and are willing to to plant increased acreage especially for the local market if they have any assurance they would not have to meet the competition of the Japanese family."

-Associated Produce Dealers and Brokers, Homer Harris

A comprehensive system of associations set up for these small Japanese farmers has enabled them to regulate market supplies and reduce prices at will, to the point that the competing white farmer has been forced out of production."

So James, yes there was resentment by some of the Japanese and much of this resentment had been festering for decades due to Japanese collusive business practices and the fact Japanese farmers were willing to live like serfs, thus driving down the standard of living for white farmers who were not willing to live like serfs.

How do you know the quotes you provided directly influenced anybody? There was equally as much testimony of opposing views.

For example:

"We are alarmed at the attention which is being paid to thoughtless public clamor for the whole evacuation of Japanese aliens and Japanese-American citizens from thier present locations, without due regard being given to the value of thier productive activity where now engaged."

-Lowell Beerry, Best Fertilizer Co.

"The partnership own outright 700 acres of land in Salinas and has approximately 5,000 acres under lese all together in Arizona and California...Unless we use oriental help we cannot farm these lands economically and efficently.

If we are unable to use Japanese in our labor camps, could we be allowed the use of our key Japanese-American formen..."

-T.M. Bunn, Salinas Valley Vegetable Echange

"This area has been developed by Italian and Japanese gardners, mostly Japanese, especcially brussels sprouts and broccoli. Our company thinks this is the best area in which broccoli can be grown in the United States.And this has been a very successful crop grown by the Japanese, and it would be very hard for us to replace this crop without the help of the Japanese."

"It is the writer;s belief that these aliens, supervised as they are by the Federal Bureau of Investigation, or as they may be by additional administrative or legislative provisions, are certainly no detriment to the public security when they are digging in the soil in agricultural areas. On the contrary they are producing food, and food is something we need in abundance and without needless interruption."

--Floyd Oles, Washington Produce Shipper's Association

James, I recommend you seek sources other than Daniels and Irons or you're only getting part of the story.

That's the difference between seeking out and expounding the truth and providing information only to support one's ideology.